Prejean v. Social Security Administration

Filing 16

MEMORANDUM RULING ; IT IS ORDERED that the Commissioners decision is AFFIRMED, and thisaction is dismissed with prejudice.. Signed by Magistrate Judge Patrick J Hanna on 10/3/16. (crt,Jordan, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
KEITH JOSEPH PREJEAN

CIVIL ACTION NO. 6:15-cv-02435

VERSUS

MAGISTRATE JUDGE HANNA

U.S. COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION

BY CONSENT OF THE PARTIES

MEMORANDUM RULING
Before the Court is an appeal of the Commissioner’s finding of non-disability.
In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the
parties consented to have this matter resolved by the undersigned Magistrate Judge.
(Rec. Doc. 12). Considering the administrative record, the parties’ briefs, and the
applicable law, the Commissioner’s decision is affirmed.
ADMINISTRATIVE PROCEEDINGS
The claimant, Keith Joseph Prejean, fully exhausted his administrative
remedies prior to filing this action. The claimant filed an application for disability
insurance benefits (“DIB”), alleging disability beginning on January 1, 2012.1 His
application was denied on July 16, 2013.2 The claimant requested a hearing, which

1

Rec. Doc. 9-1 at 132, 167.

2

Rec. Doc. 9-1 at 77.

was held on April 8, 2014 before Administrative Law Judge Monica J. Anderson.3
The ALJ issued a decision on August 8, 2014,4 concluding that the claimant was not
disabled within the meaning of the Social Security Act through the date of the
decision. The claimant sought review of that decision, but on July 30, 2015, the
Appeals Council denied his request.5 Therefore, the ALJ’s decision became the final
decision of the Commissioner for the purpose of the court’s review pursuant to 42
U.S.C. § 405(g).

The claimant then filed this action seeking review of the

Commissioner’s decision.
SUMMARY

OF

PERTINENT FACTS

The claimant was born on March 6, 1969.6 At the time of the ALJ’s decision,
he was forty-five years old. He has a high school education and vocational training
as a machinist.7 He has past relevant work experience as a calibration technician in
an oilfield service company8 and as a process and finish supervisor and shipping and

3

The hearing transcript is found at Rec. Doc. 9-1 at 33-67.

4

Rec. Doc. 9-1 at 16-27.

5

Rec. Doc. 9-1 at 4.

6

Rec. Doc. 9-1 at 36, 132.

7

Rec. Doc. 9-1 at 37.

8

Rec. Doc. 9-1 at 37-38.

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receiving supervisor in another oilfield service company.9 The record shows that Mr.
Prejean worked for V&M Tube Alloy from 1998 until he was laid off 200910 because
he was missing too much work due to his health conditions.11 He then went to work
for Tech Service Products, Inc., where he was employed from 2009 to 2012,12 with
his actual last day worked being March 6, 2013.13 While employed at Tech Service
Products, Mr. Prejean was given “significant scheduling flexibility,” and his employer
tried “to work with him in whatever way possible.”14 However, he was “unable to
fulfill his duties. . . on a consistent basis,” and his employment was terminated.15 Mr.
Prejean alleges that he has been disabled since January 1, 2012 due to diabetes,
diabetic neuropathy, high blood pressure, gastroparesis, diverticulitis, severe
constipation, depression, anxiety, and degenerative disc disease.16

9

Rec. Doc. 9-1 at 43.

10

Rec. Doc. 9-1 at 149-152.

11

Rec. Doc. 9-1 at 41.

12

Rec. Doc. 9-1 at 165.

13

Rec. Doc. 9-1 at 42.

14

Rec. Doc. 9-1 at 165.

15

Rec. Doc. 9-1 at 165.

16

Rec. Doc. 9-1 at 170.

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At the hearing, Mr. Prejean testified that , while he was working for V&M, he
began having stomach problems, and his gall bladder was removed.17 He explained
that, from that point forward, the problems with his digestive system worsened.18
On March 15, 2012,19 Mr. Prejean was seen in the emergency room at
University Medical Center (“UMC”) in Lafayette, Louisiana. He complained of
gastrointestinal problems since the removal of his gall bladder two years earlier,
including constipation, abdominal pain, and nausea. He denied being in pain, and he
denied being dizzy or light-headed. His blood glucose reading was 440, while a
normal reading is 65-99. He weighed 280 pounds, and his blood pressure was
148/95. His chief complaint was that he had been out of his medications for five
months.
Mr. Prejean was again seen at UMC’s emergency room on May 26, 2012.20 He
complained of bloody stool and abdominal pain that he rated an eight on a scale of
one to ten. He did not complain of dizziness. He weighed 237.8 pounds, and his
blood pressure was 117/79.

A CT scan of his abdomen detected colonic

17

Rec. Doc. 9-1 at 41.

18

Rec. Doc. 9-1 at 41.

19

Rec. Doc. 9-1 at 263, 289-292.

20

Rec. Doc. 9-1 at 264-265, 268, 282-288.

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diverticulosis without evidence of diverticulitis.

He was diagnosed with

diverticulosis and prescribed Reglan and Protonix.
On June 1, 2012, Mr. Prejean was seen at UMC’s internal medicine clinic.21
He weighed 279 pounds, and his blood pressure was 142/91. He was noted to have
diabetes, hypertension, and back pain, and he complained of abdominal pain. He did
not complain of dizziness. He was referred to the renal clinic and prescribed Reglan
and Protonix.
On June 23, 2012, Mr. Prejean was again seen in UMC’s emergency room.22
He weighed 283.8 pounds, and his blood pressure was 156/87. His blood glucose
reading was 222. His chief complaint was that he had gotten dizzy, fainted, had chest
pain, and vomited bile. He also complained of abdominal pain, which he rated as ten
out of ten. Under medical history, it was noted that he had previously been diagnosed
with diverticulosis and gastroparesis.23

The physician’s impressions were

21

Rec. Doc. 9-1 at 275-277.

22

Rec. Doc. 9-1 at 266-267, 272-273, 278-281.

23

“Gastroparesis is a condition in which the spontaneous movement of the muscles
(motility) in your stomach does not function normally. Ordinarily, strong muscular contractions
propel food through your digestive tract. But in gastroparesis, your stomach's motility works poorly
or not at all. This prevents your stomach from emptying properly. Gastroparesis can interfere with
normal digestion, cause nausea and vomiting, and cause problems with blood sugar levels and
nutrition.”
Mayo Clinic, http://www.mayoclinic.org/ diseases-conditions/ gastroparesis/
basics/definition/con-20023971, last visited Sept. 26, 2016. “Although gastroparesis doesn't cause
diabetes, inconsistent passage of food into the small bowel can cause erratic changes in blood sugar
levels, which make diabetes worse. In turn, poor control of blood sugar levels makes gastroparesis

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constipation and gastroparesis. Chest and abdominal x-rays showed moderate stool
compatible with constipation, mild cardiomegaly,24 degenerative changes to the spine,
but no active lung disease.
Mr. Prejean visited UMC’s renal clinic on July 9, 2012. He weighed 289
pounds, his blood pressure was 139/86. He complained of chronic abdominal pain.
His Norvasc was discontinued, and he was started on Lisinopril. He was diagnosed
with Stage III chronic kidney disease and advised to control his blood pressure and
blood sugars.
On September 15, 2012, Mr. Prejean had a consultative examination by Dr.
Barnabas Fote.25 Mr. Prejean told Dr. Fote that he injured his back while playing
basketball at the age of eighteen and had experienced back pain ever since, which he
described as a constant, nagging, aching pain in his lower back without any radiation.
He stated that both of his legs occasionally go numb and that, about once or twice a
month, he gets a tingling sensation in his feet. He explained that he was diagnosed

worse.”
Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/gastroparesis/basics/
complications/con-20023971, last visited Sept. 26, 2016.
24

According to the Mayo Clinic’s website, cardiomegaly is an enlarged heart, which
may be asymptomatic or my cause shortness of breath, abnormal heart rhythm (arrhythmia), or
swelling. Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/enlarged-heart/basics/
symptoms/con-20034346, last visited Sept. 28, 2016.
25

Rec. Doc. 9-1 at 237-242.

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with diabetes and hypertension about sixteen years earlier. He stated that he takes
oral medications and insulin for the diabetes and that his blood sugar is not
adequately controlled. He told Dr. Fote that he was diagnosed with gastroparesis
about two years earlier and that he had chronic constipation. He also reported that
he was diagnosed with sleep apnea and used a CPAP machine. He stated that he took
Amitriptyline as necessary to help him sleep. He denied any mental problems. He
reported that his medications at that time were Actos, Accuretic, Norvasc,
Amitriptyline, Lactulose, Humalog, Metoclopramide, and Pantoprazole. Mr. Prejean
told Dr. Fote that he was independent in the majority of his activities but sometimes
needs assistance bathing, dressing, using the toilet, and driving a car. His blood
pressure was 142/95, he was 5' 11", and he weighed 285 pounds. X-rays taken that
day indicated that there was a mild loss of lumbar lordosis with associated
spondylosis throughout Mr. Prejean’s lumbar spine, more significant at L4-5 and L5S1 with foraminal stenosis and disk space narrowing at the L4-5 and L5-S1 levels.
Dr. Fote opined that “[b]ased on the musculoskeletal exam,” Mr. Prejean “should be
able to sit and stand, pull and push as tolerated. . . [and] should also be able to kneel,
crawl, and crouch. Patient should be able to reach, grasp, handle and finger object.
There is no need for assistive device. Hearing an speech are normal.” Dr. Fote’s

-7-

assessment did not address Mr. Prejean’s gastrointestinal problems but only his
musculoskeletal capabilities.
Mr. Prejean returned to the internal medicine clinic at UMC on October 1,
2012.26 He weighed 298.8 pounds, and his blood pressure was 133/88. He denied
any pain, and there was no indication of dizziness. His medical history included
diabetes, hypertension, constipation, diverticulitis, gastroparesis, and inverted
stomach. A thyroid study was ordered.
On December 27, 2012, Mr. Prejean was seen in the emergency room at
UMC.27 He complained of abdominal pain that he rated as 10/10, nausea, and
vomiting, and he reported a recent thirty pound weight loss. However, he weighed
286 pounds, which was actually twelve pounds less than at his previous visit on
October 1, 2012. His blood pressure was only 87/57 but his blood sugar at the time
of admission was 741. He denied being dizzy or light-headed. He was admitted to
the hospital with diagnoses of hyperosmolar nonketotic state (a condition that occurs
when blood sugar is not controlled28 ), acute-on-chronic kidney failure, diabetes

26

Rec. Doc. 9-1 at 259-261.

27

Rec. Doc. 9-1 at 244-252.

28

American Diabetes Association, http://www.diabetes.org/living-with-diabetes/
complications/hyperosmolar-hyperglycemic.html?referrer=https://www.google.com/, last visited
Sept. 28, 2016.

-8-

mellitus, and gastroparesis. He was given insulin, saline, Zofran, Reglan, Colace, and
Amitriptyline but his hypertension medications were withheld. The next morning, he
was feeling better, and his blurry vision had improved. He denied any anxiety or
depression. On December 29, his medications were adjusted. On December 30, his
medications were again adjusted, and he was discharged to home with instructions
to follow up in the gastrointestinal clinic and also in the renal clinic. His discharge
diagnoses were diabetes mellitus, gastroparesis, chronic kidney disease, and
hypertension.
Mr. Prejean followed up at UMC’s gastrointestinal clinic on February 18,
2013.29

He weighed 292.8 pounds, and his blood pressure was 119/79. He

complained of pain rated as four on a scale of one to ten, but there is no reference of
dizziness in the treatment note. The doctor’s impression was chronic constipational
gastroparesis. Multiple medications were prescribed.
On April 2, 2013, Mr. Prejean was seen at UMC’s internal medicine clinic.30
He weighed 292 pounds, and his blood pressure was 158/101. He denied being in
pain, and there is no reference to dizziness. The conditions addressed were diabetes,
erectile dysfunction, hypertension, and gastroparesis.

29

Rec. Doc. 9-1 at 325-327.

30

Rec. Doc. 9-1 at 253-256.

-9-

On June 13, 2013,31 Mr. Prejean had an appointment at UMC’s dermatology
clinic regarding a mole on his back. He weighed 287 pounds, and his blood pressure
was 189/130. He denied that he was in pain and reported that he had forgotten to take
his blood pressure medication for two days. He was referred to the surgery clinic.
On June 29, 2013, Mr. Prejean was examined by Dr. Jacques Courseault32 for
another consultative examination.

Mr. Prejean gave a history of diabetes,

gastroparesis, diverticulitis, high blood pressure, inverted stomach, depression,
anxiety, back problems, diabetic neuropathy, and constipation. He stated that he had
difficulty controlling his blood sugar and stated that his blood glucose levels were
commonly in the 200s to 300s. He described severe constipation requiring the
frequent use of laxatives, constant nausea, and vomiting. He also reported diabetic
neuropathy and tingling and numbness in his legs and feet without weakness. He also
told Dr. Courseault that he has occasional achy low back pain that is worse with
activity and better with rest. He described his high blood pressure as difficult to
control, but stated that he is compliant with his medications. He stated that his
depression and anxiety are no longer a problem. Mr. Prejean told Dr. Courseault that
he can sit and stand for thirty minutes at a time, can walk for four blocks, does not

31

Rec. Doc. 9-1 at 319-321.

32

Rec. Doc. 9-1 at 294-298.

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need an assistive device, does not wear glasses, is right handed, can complete
activities of daily living, and can complete home maintenance tasks. Mr. Prejean
reported that his medications were Norvasc, Lipitor, Lisinopril, Protonix, Novolin,
Lantus, Lactulose, and Milk of Magnesia. He complained of fatigue, a recent change
in visual acuity, headaches, heart palpitations, shortness of breath on exertion,
indigestion, nausea, vomiting, change in stool caliber, abdominal pain, urinary
urgency and frequency, joint pain, and difficulty sleeping. He did not complain of
dizziness or light-headedness.
Dr. Courseault found that Mr. Prejean’s blood pressure was 156/106 and that
he weighed 284 pounds. His bilateral Achilles reflexes were absent. Dr. Courseault
opined that Mr. Prejean should be allowed to alternate sitting and standing as needed
in order to relieve his low back pain. He also opined that Mr. Prejean is capable of
sitting, walking, and/or standing for a full workday, that he can lift and carry objects
without limitations, that he can hold a conversation, respond appropriately to
questions, and carry out and remember instructions. He found that Mr. Prejean had
a normal range of motion in all tested joints. However, Dr. Courseault advised Mr.
Prejean to proceed to an emergency room due to his high blood pressure and
tachycardia.

-11-

Mr. Prejean followed Dr. Courseault’s instructions and went to the emergency
room at UMC that same day.33 Upon arrival, he weighed 284 pounds, his blood
pressure was 137/99, and he complained of a headache. He reported that his blood
sugar readings have been in the 400s to 500s. He also complained of abdominal pain,
stating that he had had this problem for two years. He rated his pain as a nine out of
ten but the physician indicated that he was complaining of mild abdominal pain. Mr.
Prejean denied being dizzy or light-headed, and he denied depression and anxiety.
Mr. Prejean’s blood sugar level was tested, and it was 408. It is not clear from the
treatment note whether Mr. Prejean was given any medication before being released.
He was diagnosed with hyperglycemia and constipation.
On August 27, 2013,34 Mr. Prejean was seen in UMC’s surgery clinic with
regard to moles on his back. He weighed 275.2 pounds, his blood pressure was
157/107, and he denied being in pain. He denied having a headache, and stated that
he did not take his blood pressure medication that day.
Mr. Prejean was seen at UMC’s internal medicine clinic for follow up on
October 14, 2013.35 He complained of abdominal pain that he rated as 8.5 on a scale

33

Rec. Doc. 9-1 at 310-318.

34

Rec. Doc. 9-1 at 309.

35

Rec. Doc. 9-1 at 306-308.

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of one to ten. He weighed 267.6 pounds, and his blood pressure was 128/98. There
is no reference to dizziness or light-headedness. His diabetes and hypertension
medications were refilled, and he was prescribed Nexium for gastroesophageal reflux.
Mr. Prejean was again seen at UMC, this time in the emergency room, on
March 25, 2014.36 Mr. Prejean complained that he had experienced abdominal pain
and vomiting for five years and told the physician that he had been off all of his
medications for six months. Diagnostic testing was performed, which revealed that
his blood sugar reading was 533. Abdominal x-rays showed significant fecal
retention throughout the colon compatible with constipation. The doctor’s clinical
impressions were constipation, uncontrolled hypertension, and uncontrolled diabetes.
He was advised to have a colonoscopy. There is no reference in the treatment notes
to dizziness or light-headedness.
At the time of the hearing, Mr. Prejean submitted a list of sixteen medications,
including Doc-q-lace, Miralax, Lactulose, and Magnesium Citrate for constipation;
Norvasc and Lisinopril for hypertension; Lipitor for cholesterol; Protonix,
Metoclopramide, and Pantopraxole for his stomach; Novolin and Lantus solostar for
diabetes; Ondansetrom for nausea; Nexium for gastroesophageal reflux disease;
Tylenol for pain; and Amitriptyline as a sleep aid. However, he testified at the
36

Rec. Doc. 9-1 at 329-341.

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hearing that he could not afford his medications37 after he stopped working on March
5, 2013,38 had not taken any insulin for more than a year before the hearing,39 had
stopped testing his blood glucose level because he did not have any medication to
treat his diabetes,40 and had stopped taking prescription medications for his high
blood pressure.41 In his hearing testimony, he claimed that the only medicine he was
then taking were over-the-counter laxatives.42 He also testified that he vomits bile
upon waking up in the morning, is nauseated throughout the day, and has constant
abdominal pain that he rates as 10-plus on a scale of one to ten.43 Mr. Prejean
testified that he gets dizzy if he bends down.44 He said he is scared that he will get
dizzy and fall, so he does not feel safe unless someone is with him.45 For that reason,
he stays in bed most of the time.46 When asked why he gets dizzy, Mr. Prejean stated
37

Rec. Doc. 9-1 at 42, 49, 52.

38

Rec. Doc. 9-1 at 52.

39

Rec. Doc. 9-1 at 52.

40

Rec. Doc. 9-2 at 54.

41

Rec. Doc. 9-1 at 52.

42

Rec. Doc. 9-2 at 53.

43

Rec. Doc. 9-1 at 54.

44

Rec. Doc. 9-1 at 47.

45

Rec. Doc. 9-1 at 47.

46

Rec. Doc. 9-1 at 47.

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that he presumes it is because of his diabetes and high blood pressure or because of
his gastroparesis.47 He stated that he sometimes uses a cane to steady himself when
he is dizzy.48 He also claimed to have major migraine headaches, diabetic neuropathy
in his legs and feet and also in his stomach and intestines, as well as degenerative disc
disease in his back.49 He stated that, because his bowel movements are so infrequent,
he never knows when they will occur.50 Mr. Prejean also stated that he has sleep
apnea51 and has had kidney failure in the past.52 When asked about why he stopped
working, Mr. Prejean explained that he would get dizzy and feel like he was going
to pass out and consequently did not feel safe in the workplace.53
Mr. Prejean now seeks reversal of the ALJ’s denial of disability benefits.

47

Rec. Doc. 9-1 at 52.

48

Rec. Doc. 9-1 at 56.

49

Rec. Doc. 9-1 at 47-48.

50

Rec. Doc. 9-1 at 50.

51

Rec. Doc. 9-1 at 53.

52

Rec. Doc. 9-1 at 54.

53

Rec. Doc. 9-1 at 45.

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ANALYSIS
A.

THE STANDARD

OF

REVIEW

Judicial review of the Commissioner's denial of disability benefits is limited
to determining whether substantial evidence supports the decision and whether the
proper legal standards were used in evaluating the evidence.54 “Substantial evidence
is more than a scintilla, less than a preponderance, and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”55 Substantial
evidence “must do more than create a suspicion of the existence of the fact to be
established, but ‘no substantial evidence’ will only be found when there is a
‘conspicuous absence of credible choices' or ‘no contrary medical evidence.’”56
If the Commissioner's findings are supported by substantial evidence, then they
are conclusive and must be affirmed.57 In reviewing the Commissioner's findings, a
court must carefully examine the entire record, but refrain from re-weighing the

54

Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Martinez v. Chater, 64 F.3d
172, 173 (5 Cir. 1995).
th

55

Villa v. Sullivan, 895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164
(5 Cir. 1983)).
th

56

Hames v. Heckler, 707 F.2d at 164 (quoting Hemphill v. Weinberger, 483 F.2d 1137.
1139 (5 Cir. 1973), and Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973)).
th

57

42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d at 173; Carey v. Apfel, 230 F.3d 131,
135 (5 Cir. 2000).
th

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evidence or substituting its judgment for that of the Commissioner.58 Conflicts in the
evidence and credibility assessments are for the Commissioner to resolve, not the
courts.59 Four elements of proof are weighed by the courts in determining if
substantial evidence supports the Commissioner's determination: (1) objective
medical facts, (2) diagnoses and opinions of treating and examining physicians, (3)
the claimant's subjective evidence of pain and disability, and (4) the claimant's age,
education, and work experience.60
B.

ENTITLEMENT

TO

BENEFITS

The Disability Insurance Benefit (“DIB”) program provides income to
individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence.61
The term “disabled” or “disability” means the inability to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can

58

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Villa v. Sullivan, 895 F.2d at
1021; Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Carey v. Apfel, 230 F.3d at 135; Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
59

Martinez v. Chater, 64 F.3d at 174.

60

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991); Martinez v. Chater, 64 F.3d at

61

See 42 U.S.C. § 423(a).

174.

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be expected to last for a continuous period of not less than twelve months.”62 A
claimant is determined to be disabled only if his physical or mental impairment or
impairments are so severe that he is unable to not only do his previous work, but
cannot, considering his age, education, and work experience, participate in any other
kind of substantial gainful work that exists in significant numbers in the national
economy, regardless of whether such work exists in the area in which the claimant
lives, whether a specific job vacancy exists, or whether the claimant would be hired
if he applied for work.63
C.

THE EVALUATION PROCESS

AND THE

BURDEN

OF

PROOF

The Commissioner uses a sequential five-step inquiry to determine whether a
claimant is disabled. This process requires the ALJ to determine whether a claimant
(1) is currently working; (2) has a severe impairment; (3) has an impairment listed in
or medically equivalent to those in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) is
able to do the kind of work he did in the past; and (5) can perform any other work.64

62

42 U.S.C. § 1382c(a)(3)(A).

63

42 U.S.C. § 1382c(a)(3)(B).

64

20 C.F.R. § 404.1520; see, e.g., Wren v. Sullivan, 925 F.2d at 125; Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 271-72 (5th Cir. 2002);
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).

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“A finding that a claimant is disabled or is not disabled at any point in the five-step
review is conclusive and terminates the analysis.”65
Before going from step three to step four, the Commissioner assesses the
claimant's residual functional capacity66 by determining the most the claimant can still
do despite his physical and mental limitations based on all relevant evidence in the
record.67 The claimant's residual functional capacity is used at the fourth step to
determine if he can still do his past relevant work and at the fifth step to determine
whether he can adjust to any other type of work.68
The claimant bears the burden of proof on the first four steps.69 At the fifth
step, however, the Commissioner bears the burden of showing that the claimant can
perform other substantial work in the national economy.70 This burden may be
satisfied by reference to the Medical-Vocational Guidelines of the regulations, by

65

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. den. 914 U.S. 1120
(1995) (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)).
66

20 C.F.R. § 404.1520(a)(4).

67

20 C.F.R. § 404.1545(a)(1).

68

20 C.F.R. § 404.1520(e).

69

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
70

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.

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expert vocational testimony, or by other similar evidence.71 If the Commissioner
makes the necessary showing at step five, the burden shifts back to the claimant to
rebut this finding.72 If the Commissioner determines that the claimant is disabled or
not disabled at any step, the analysis ends.73
D.

THE ALJ’S FINDINGS

AND

CONCLUSIONS

In this case, the ALJ determined, at step one, that the claimant has not engaged
in substantial gainful activity since January 1, 2012.74 This finding is supported by
the evidence in the record.
At step two, the ALJ found that the claimant has the following severe
impairments: obesity, degenerative disc disease, hypertension, diabetes mellitus, and
gastrointestinal problems.75 This finding is supported by evidence in the record.

71

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).

72

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
73

Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992), citing Johnson v. Bowen, 851
F.2d 748, 751 (5th Cir. 1988). See, also, 20 C.F.R. § 404.1520(a)(4).
74

Rec. Doc. 9-1 at 18.

75

Rec. Doc. 9-1 at 18.

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At step three, the ALJ found that the claimant has no impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment.76 The claimant does not challenge this finding.
The ALJ found that the claimant has the residual functional capacity to perform
sedentary work, with certain stated exceptions, including the need to alternate sitting
and standing as needed.77 The claimant challenges this finding.
At step four, the ALJ found that the claimant is not capable of performing his
past relevant work.78 The claimant does not challenge this finding.
At step five, the ALJ found that the claimant was not disabled from January 1,
2012 (the alleged disability onset date) through August 8, 2014 (the date of the
decision) because there are jobs in the national economy that he can perform.79 The
claimant challenges this finding.

76

Rec. Doc. 9-1 at 19.

77

Rec. Doc. 9-1 at 20.

78

Rec. Doc. 9-1 at 25.

79

Rec. Doc. 7-1 at 28-29.

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E.

THE CLAIMANT’S ALLEGATIONS

OF

ERROR

The claimant argues that the ALJ erred (1) because she improperly evaluated
lay evidence from the claimant’s former employer; and (2) because she improperly
evaluated the claimant’s nonexertional limitations.
F.

THE ALJ PROPERLY EVALUATED LAY WITNESS TESTIMONY
The claimant argues that the ALJ erred in failing to properly evaluate the

statements of J. Brock Dumestre, Jr., the president of Tech Service Products, Inc., Mr.
Prejean’s former employer. The regulations explain how the intensity and persistence
of symptoms such as pain are to be evaluated in determining whether or how a
claimant’s symptoms limit his capacity to work. In particular, an ALJ is required to
“carefully consider” evidence from lay sources.80 “Because symptoms, such as pain,
are subjective and difficult to quantify, any symptom-related functional limitations
and restrictions which [the claimant, his] treating or nontreating source, or other
persons report, which can reasonably be accepted as consistent with the objective
medical evidence and other evidence, will be taken into account. . . in reaching a
conclusion as to whether [a person is] disabled.”81 Mr. Prejean argues that the ALJ

80

20 C.F.R. § 404.1529(c)(3).

81

20 C.F.R. § 404.1529(c)(3).

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failed to comply with this guideline in evaluating the information provided by Mr.
Dumestre.
Mr. Dumestre wrote a letter dated April 3, 2014, addressed “to whom it may
concern.” The letter reads as follows:
Keith Prejean was a valued employee of Tech Service Products, Inc. He
began work with our company in November of 2009. During the past
2-3 years, Mr. Prejean has been unable to fulfill his duties at our
company on a consistent basis. As a result, Mr. Prejean’s employment
has been terminated.
Due to Keith’s status with our company, we provided him with
significant scheduling flexibility. It was our intention to work with him
in whatever way possible. Mr. Prejean did his best to resume his duties
with our company. Even with this scheduling ability, Mr. Prejean was
not able to continue his work with our company, which resulted in his
termination.82
The claimant states in his briefing that Tech Service Products terminated his
employment because of excessive absenteeism, and that the ALJ failed to consider
his need for frequent absences as a nonexertional factor in evaluating his residual
functional capacity. In fact, however, there is no evidence in the record establishing
that Mr. Prejean was terminated by Tech Service Products due to excessive absences.
While Mr. Prejean testified at the hearing that he was terminated from his
employment with V&M (before he went to work for Tech Support Products) for

82

Rec. Doc. 9-1 at 165.

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excessive absenteeism,83 Mr. Dumestre’s letter does not state that excessive
absenteeism was the reason that Mr. Prejean’s employment with Tech Service
Products was terminated. The letter vaguely states only that he was “unable to fulfill
his duties. . . on a consistent basis.” There could be any number of ways in which an
employee might be unable to consistently fulfill his duties. The fact that Mr.
Dumestre stated that the company afforded Mr. Prejean scheduling flexibility also
fails to establish excessive absenteeism. Scheduling flexibility could have multiple
different meanings depending on an employee’s particular circumstances. But even
if the letter could be interpreted as supporting the argument that Mr. Prejean was
excessively absent from work, no reason for such absenteeism was provided by Mr.
Dumestre or by Mr. Prejean.
In his hearing testimony, Mr. Prejean stated that he became dizzy at work and
because of his dizziness did not feel safe in his workplace environment. That was the
only reason he provided for why he could no longer work at Tech Service Products.
He did not testify that his gastrointestinal problems required him to be absent from
work nor did not he testify that his pain complaints – whether related to his
degenerative disc disease, his diabetic neuropathy, or his gastroparesis – was so
intense that he could not go to work.
83

Rec. Doc. 9-1 at 41.

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At the hearing, the vocational expert testified that Mr. Prejean’s work at Tech
Service Products should be classified as medium work, while his prior job at V&M
was properly classified as light work, but such work would be precluded with the
restrictions that the ALJ found necessary.
In her ruling, the ALJ summarized Mr. Dumestre’s letter and accepted as
credible Mr. Dumestre’s opinion that Mr. Prejean was not able to fulfill his duties
with that company. It is apparent that the ALJ “carefully considered” the information
provided by Mr. Dumestre in accordance with the regulation quoted above. Then,
after carefully considering the letter, the ALJ concluded that although Mr. Prejean
was no longer able to fulfill his duties at Tech Service Products, he was capable of
working at a lower exertional level. This Court finds that the ALJ properly evaluated
the evidence presented in the form of Mr. Dumestre’s letter and reached a conclusion
that is supported by substantial evidence in the record.
G.

THE ALJ PROPERLY EVALUATED
LIMITATIONS

THE

CLAIMANTS NON-EXERTIONAL

The claimant’s second argument is that the ALJ failed to properly evaluate his
non-exertional limitations. The responsibility for determining a claimant's residual
functional capacity belongs to the ALJ.84 In making a finding in that regard, the ALJ

84

Ripley v. Chater, 67 F.3d at 557.

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must consider all of the evidence in the record, evaluate the medical opinions in light
of other information contained in the record, and determine the plaintiff's ability
despite any physical and mental limitations.85
The claimant argued that he is unable to persist over a forty-hour work week
and to maintain consistent, reliable attendance at work due to his chronic
constipational gastroparesis.86 But there is no evidence that Mr. Prejean lost his job
at Tech Service Products due to excessive absenteeism or due to any symptoms or
limitations caused by his gastroparesis. Nowhere in his briefing does Mr. Prejean
identify the alleged non-exertional limitations that prevent him from going to work
every day or explain how those alleged limitations prevented him from doing his job.
Although he stated that his gastroparesis causes constipation and abdominal
tenderness,87 he did not relate those particular symptoms to an inability to perform the
tasks that were required of him by his employer over an eight-hour work day or a
forty-hour work week.

85

Martinez v. Chater, 64 F.3d at 176.

86

Rec. Doc. 14 at 9.

87

Rec. Doc. 14 at 10.

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At the hearing, Mr. Prejean testified that he stopped working because he got
dizzy at work and consequently did not feel safe in the workplace.88 He did not offer
any other reason why his multiple medical conditions prevented him from continuing
to work. When asked what caused his dizziness, Mr. Prejean testified that he was not
sure but assumed that it was caused either by his diabetes, his high blood pressure,
or his gastroparesis.89
The record contains only one treatment note indicating that Mr. Prejean
complained to a physician of dizziness and several treatment notes in which he denied
experiencing dizziness or light-headedness. If dizziness was the primary reason why
he felt he could no longer work, it seems that the record would document both more
complaints of that condition to his treating physicians and more attempts to seek
treatment for that condition.
Mr. Prejean also complained of constant abdominal pain that he rates at greater
than ten on a scale of one to ten90 and stated that he is most comfortable lying in
bed.91 Despite numerous complaints of pain in the record, however, there is no

88

Rec. Doc. 9-1 at 45.

89

Rec. Doc. 9-1 at 52.

90

Rec. Doc. 9-1 at 54.

91

Rec. Doc. 9-1 at 47.

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indication that Mr. Prejean has ever been given pain medication or been referred to
a pain management specialist. Pain can constitute a disabling impairment,92 but pain
is disabling only when it is constant, unremitting, and wholly unresponsive to
therapeutic treatment.93 Mild or moderate pain is not disabling. Furthermore,
subjective complaints, such as complaints of pain, must be corroborated by objective
medical evidence.94 While an ALJ must take into account a claimant's subjective
allegations of pain in determining residual functional capacity, the claimant must
produce objective medical evidence of a condition that reasonably could be expected
to produce the level of pain alleged.95 The mere existence of pain does not
automatically create grounds for disability, and subjective evidence of pain does not
take precedence over conflicting medical evidence.96 The absence of objective

92

Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Cook v. Heckler, 750 F.2d 391,
395 (5 Cir. 1985).
th

93

Falco v. Shalala, 27 F.3d at 163; Selders v. Sullivan, 914 F.2d 614, 618-19 (5th Cir.

94

Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).

95

Harper v. Sullivan, 887 F.2d 92, 96 (5th Cir. 1989).

96

Harper v. Sullivan, 887 F.2d at 96.

1990).

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factors can justify the conclusion that a witness lacks credibility.97 In this case, the
severity of Mr. Prejean’s pain complaints are not medically corroborated.
Furthermore, the record is replete with instances in which Mr. Prejean failed
to take his medication as prescribed. On March 15, 2012,98 he reported to a physician
at UMC that he had been off all of his medications for five months. That would mean
that, while he was still working for Tech Support Products, he stopped taking his
medication. Hypertension and diabetes are serious conditions, both of which can be
life-threatening if left untreated. Perhaps his symptoms could have been controlled
if he had taken his medication as prescribed. In summary, the medical evidence in
the record does not support Mr. Prejean’s claim that he is unable to work due to pain
or dizziness.
Furthermore, there is no requirement that an ALJ make a finding regarding the
sustainability of employment in all cases.99 Such a finding is necessary only if the
claimant's “ailment waxes and wanes in its manifestation of disabling symptoms.”100

97

Dominguez v. Astrue, 286 Fed. App’x 182, 187 (5th Cir. 2008), citing Hollis v. Bowen,
837 F.2d at 1385.
98

Rec. Doc. 9-1 at 263, 289-292.

99

Perez v. Barnhart, 415 F.3d at 465; Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir.

100

Perez v. Barnhart, 415 F.3d at 465, quoting Frank v. Barnhart, 326 F.3d at 619.

2003).

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Here, there is no allegation that Mr. Prejean’s impairments wax and wane;
consequently, there was no requirement that the ALJ’s ruling include a separate
finding concerning the sustainability of employment.
In such cases, including this one, “the claimant's ability to maintain
employment is subsumed in the RFC [residual functional capacity] determination.”101
“A finding that a claimant is able to engage in substantial gainful activity requires
more than a simple determination that the claimant can find employment and that he
can physically perform certain jobs; it also requires a determination that the claimant
can hold whatever job he finds for a significant period of time.”102 “[T]he ability of
a claimant to perform jobs in the national economy must take into account the actual
ability of the claimant to find and hold a job in the real world.”103 This requirement
extends to cases involving mental as well as physical impairments.104 Therefore, the
ALJ’s finding that Mr. Prejean has the residual functional capacity to perform a
modified range of sedentary work must be understood as implicitly incorporating a

101

Perez v. Barnhart, 415 F.3d at 465.

102

Singletary v. Bowen, 798 F.2d 818, 822 (5th Cir. 1986) (emphasis in original).

103

Singletary v. Bowen, 798 F.2d at 822, quoting Parsons v. Heckler, 739 F.2d 1334,
1340 (8th Cir. 1984).
104

Watson v. Barnhart, 288 F.3d 212, 217-18 (5th Cir. 2002).

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finding that he is capable of sustaining employment in such a job. This Court finds
that the ALJ did not err in evaluating Mr. Prejean’s residual functional capacity.
CONCLUSION
This Court finds that the ALJ properly evaluated the evidence provided by Mr.
Prejean’s former employer and properly evaluated Mr. Prejean’s non-exertional
limitations when analyzing his residual functional capacity. Accordingly,
IT IS ORDERED that the Commissioner’s decision is AFFIRMED, and this
action is dismissed with prejudice.
Signed at Lafayette, Louisiana, on this 3rd day of October 2016.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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